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Y library 


Juhtrtal 

of  Sntrntattonal  Siaputea 

No.  a 


Non  -Unatiriabl*  Staputea  a nil  % $ear? 
®«at«a 


BY 


©mpr  3L  Sjeraltpy 

of  the  Baltimore  Bar 


MAY7',  1912 


Published  Quarterly  by  American  Society  for  Judicial  Settlement 
of  International  Disputes. 


$ 


Entered  as  seo 
the  Postoffice  a 
July  16,  1894. 


KZ 
4850 
.J835 
no. 8 


A. 


irch  21,  1910,  at 
inder  the  Act  of 


Non  Kuatmahl?  Ixapatas  attl» 

■jpfcare 

By 

©rner  IF.  iSerEljrg 

The  Senate  of  the  United  States  has 
stricken  out  from  the  proposed  arbitration 
treaties  with  Great  Britain  and  France  the 
clause  which  empowered  the  Joint  High  Com- 
mission of  Inquiry  to  decide  whether  differ- 
ences arising  were  justiciable  and  should  ac- 
cordingly be  referred  to  arbitration.  It  is  a 
real  misfortune  that  the  value  of  treaties 
which  marked  so  great  a step  forward  in  the 
cause  of  peace  should  be  thus  impaired  be- 
cause of  emotional  excitement  about  things 
that  may  never  happen,  or  because  of  a school- 
men’s controversy  over  what  is  or  is  not  “in- 
ternationally justiciable.”  In  effect  it  is  essen- 
tially the  old  conflict  between  the  legalist  who 


3 


believes  that  disputes  can  be  determined  only 
by  rules  known  and  consented  to,  and  the  lib- 
eral who  entertains  different  notions  of  the 
nature,  functions  and  sanctions  of  law. 

International  disputes  may  be  broadly  dis- 
tinguished as  legal  or  political  in  their  nature. 
But  this  broad  distinction  is  like  that  between 
law  and  fact.  Often  this  is  a case  of  mixed 
law  and  fact;  and  no  less  often  is  the  inter- 
national dispute  of  a mixed  character.  For 
recognized  legal  differences,  international  juris- 
prudence usually  supplies  a rule  of  law.  For 
political  differences,  such  a rule  rarely  exists, 
and  for  that  reason  it  is  assumed  that  arbitra- 
tion, or  even  the  various  devices  of  mediation, 
commissions  of  inquiry,  etc.,  are  unsuitable  or 
are  likely  to  be  ineffective.  It  is  argued  that 
you  can’t  judicially  decide  the  non-justiciable, 
and  that  certain  questions  are  non-justiciable 
because  there  is  no  rule  of  law.  Then  the 
circle  is  completed  by  assuming  that  there  is 
no  rule  of  law  because  such  questions  are  non- 
justiciable.  The  rules  of  law,  which  enable  us 
to  settle  legal  differences  between  states,  when 
analyzed,  have  no  greater  validity  than  is  given 
to  them  by  the  general  consent  of  the  society 


4 


of  nations.  Any  arbitral  tribunal,  whether 
created  by  treaty  for  a given  dispute,  or  per- 
manent, and  in  the  nature  of  a court  for  all 
disputes,  need  not  look,  and  should  not  look, 
simply  and  solely  for  a settled  pre-existing 
rule;  except  in  so  far  as  such  a rule,  like  so 
many  rules  of  our  every  day  civil  law,  is  im- 
plicit in  sound  legal  reasoning  and  the  de- 
mands of  justice.  It  can  act  both  as  judge 
and  law-maker.  It  can  create  new  rights  by 
its  decisions.  And  international  consent  or 
an  existing  treaty  or  a lively  public  opinion 
can  convert  these  decisions  into  obligations 
having  all  the  binding  effects  of  law.  The 
fact  that  existing  international  law  fails  to  lay 
down  a rule  covering  these  non-justiciable 
questions  need  not  deter  any  established  tri- 
bunal from  creating  its  own  law.  Indeed,  this 
has  been  largely  the  actual  practice  of  most 
international  adjudications ; instance  the  treaty 
of  Washington  and  the  rules  established  for 
the  Alabama  claims. 

This  controversy  between  legalists  and  lib- 
erals, which  affected  the  present  treaties  so 
disastrously,  is  not  a new  one;  it  simply  re- 
veals again  two  conflicting  tendencies  which 


5 


students  of  Anglo-American  legal  institutions 
have  noted  in  every  part  of  our  legal  and 
political  system.  On  the  one  hand  there  is 
the  Puritan  faith  in  mere  law — in  the  laying 
down  of  authoritative  guides  for  the  con- 
science of  free  men.  This  is  symbolized  for 
all  time  in  graven  stone  upon  the  walls  of  one 
of  our  great  law  schools,  which  has  chosen 
the  words  “and  thou  shalt  shew  them  ordi- 
nances and  laws  and  the  way  in  which  they 
must  walk,  and  the  work  that  they  must  do,” 
as  the  text  from  which  the  juventus  cupida 
legum  may  draw  the  idea  of  law.  On  the 
other  hand  there  is  the  deep-rooted  profes- 
sional distrust  of  all  conscious  law-making — 
the  belief  that  a slow  process  of  empirical  ex- 
clusion and  inclusion  is  the  only  method  by 
which  law  may  come  into  being — the  con- 
viction that  all  the  principles  of  a complete 
legal  system  are  implied  in  historical  jural  ma- 
terials which  experience  will  unfold  or  develop 
gradually  to  meet  the  exigencies  of  a growing 
and  a changing  world.  One  tendency  exalts 
unduly  the  efficacy  of  conscious  effort  and  is 
in  feverish  haste  to  translate  the  idea  of  the 
moment  into  chapter  and  section  of  the  statute 


6 


book.  The  other  tendency  depreciates  unduly 
the  efficacy  of  effort  and  is  reluctant  to  give 
force  and  authority  to  obvious  teachings  of 
the  judicial  and  juristic  experience  of  the  past. 
Both  tendencies  are  strongly  marked,  not  only 
in  the  present  treaty  controversies,  but  in  all 
Anglo-American  discussions  of  schemes  for 
the  peaceable  adjustment  of  international  dis- 
putes. 

The  over-zealous  pacifist  is  ready  to  settle 
the  whole  matter  out  of  hand  by  the  simple 
process  of  international  legislation  and  adjudi- 
cation. Given  an  international  parliament 
and  an  international  supreme  court,  and  he 
will  soon  have  the  international  statute  book 
with  the  inevitable  judicial  gloss  which — on 
paper — will  solve  all  problems  and  preclude 
all  save  forensic  disputes.  The  over-cautious 
adherent  of  our  received  historical  jurispru- 
dence, on  the  other  hand,  is  equally  convinced 
that  anything  beyond  decision  of  the  case  in 
hand,  as  it  arises,  in  the  light  of  past  expe- 
rience is  wholly  futile.  He  would  have  us  do 
nothing  beyond  accumulating  judicial  mate- 
rials and  observing  the  historical  processes  by 
which  they  are  brought  forth.  Accordingly 


7 


he  gives  aid  and  comfort  to  the  apostles  of  the 
cult  of  red  blood  and  the  strong  arm,  who  see 
only  decadence  in  the  submission  of  questions 
of  national  honor  to  mere  judicial  decision. 
He  draws  upon  history  and  biology  to  prove 
that  a nation  which  values  its  honor  as  it 
should,  must  keep  in  good  training,  must  be 
armed  to  the  teeth,  must  be  prepared  to  take 
part  in  the  international  duello,  and  must 
never  play  what  he  is  pleased  to  term  the 
coward’s  part  by  submitting  vital  questions 
of  right  and  wrong  to  the  judgment  of  a tri- 
bunal. 

The  pacifist  may  see  visions  and  dreams 
that  can  never  be  fulfilled,  and  his  insistence 
on  the  impracticable  may  prevent  the  realiza- 
tion of  much  that  is  really  practicable;  but 
there  is  no  occasion  here  to  pick  his  program 
to  pieces.  Even  if  we  are  skeptical  as  to  the 
outcome  of  much  that  he  assures  us  he  is  on 
the  eve  of  bringing  about,  we  must  recognize 
that  he  can  do  no  worse  than  fail.  Just  now 
it  is  more  worth  while  to  look  narrowly  at  the 
extremist  on  the  other  side,  the  legal  extremist 
who  by  his  position  on  a theoretic  question  is 
aiding  and  abetting  the  party  of  “righteous 


8 


war”  and  heavily  armed  peace.  If  he  is  sound 
in  his  definition  of  the  limits  of  what  is  inter- 
nationally justiciable,  then  the  program  of  our 
peace  societies  and  all  our  aspirations  for  in- 
ternational courts  and  arbitration  treaties 
might  as  well  be  abandoned. 

Let  us  then  examine  first  the  premises  of  the 
doctrine  of  absolutely  non- justiciable  disputes  as 
we  have  seen  it  expounded  in  the  recent  treaty 
controversy. 

These  premises  purport  to  be:  (i)  biologi- 
cal, (2)  historical,  and  (3)  philosophical;  and 
curiously  enough,  while  this  doctrine  is  most 
vociferously  preached  by  our  chief  prophet  of 
the  progressive,  all  three  of  these  premises 
have  long  since  been  abandoned  by  leaders  in 
social,  political  and  legal  science. 

A lawyer  must  be  concerned  chiefly  with 
the  historical  and  philosophical  premises.  He 
will  have  a professional  instinct  averse  to  the 
argument  biological,  though  the  equally  non- 
scientific  layman  feels  quite  equal  thereto. 
Suffice  it  to  say  that  nothing  seems  to  be  more 
securely  dead  and  buried  than  the  biological 
sociology  of  the  last  century;  and  the  sup- 
posed biological  argument  in  the  present  con- 


9 


nection  is  nothing  else.  As  Professor  Small 
has  put  it,  the  biological  sociologists  “carry 
symbolism  into  realism,”  they  treat  society 
as  though  it  were  the  last  term  in  the  zoologi- 
cal series.  They  “think  of  society  as  a big 
animal.”  Certainly,  those  who  grow  indig- 
nant about  “nature  faking”  in  innocuous  tales 
for  children  should  employ  this  conception  of 
society  in  moderation  when  presenting  serious 
arguments  for  the  grown-ups.  For  at  bottom 
the  two  things  are  the  same.  The  writer  of 
nursery  tales  who  puts  human  emotions, 
human  sentiments  and  human  intelligence 
into  wolves  and  sheep-dogs  and  rabbits  and 
partridges,  the  political  poet-philosopher  who 
interprets  world  politics  by  the  attributes  of 
Adamzad  the  bear  and  social  problems  by  the 
attributes  of  the  female  cobra,  and  the  pub- 
licist who  preaches  the  biological  sociology  in 
opposition  to  arbitration  treaties,  obey  the 
same  instinct.  They  “carry  symbolism  into 
realism.” 

The  argument  historical  is  equally  unsatis- 
factory. The  tenets  of  the  orthodox  historical 
school  in  jurisprudence  have  lost  their  hold 
on  the  legal  science  of  today.  In  Germany 


10 


the  social  philosophical  school,  in  France  the 
revival  of  natural  law  ideas,  in  Italy  the  posi- 
tivists and  the  never  suppressed  philosophical 
school,  have  swept  this  historical  school  from 
the  field.  Everywhere  upon  the  continent 
“judicial  idealism”  is  coming  once  more  to  be 
the  order  of  the  day.  Only  in  America  is  it 
still  scientific  to  preach  the  futility  of  effort 
and  to  argue  that  we  must  fold  our  hands  and 
watch  the  evolution  of  mechanical  laws. 
Ihering  demonstrated  that  laws  were  not  the 
inevitable  products  of  the  genius  of  peoples 
working  in  mysterious  ways,  but  were  fash- 
ioned by  human  minds  to  meet  human  needs. 
Stammler  showed  us  that  if  the  absolutely 
and  eternally  just  was  an  illusion,  we  might 
nevertheless  with  good  reason  consciously 
seek  the  just  relatively  and  for  the  time  being. 
He  showed  us  that  such  a “natural  law  with 
growing  content”  may  be  applied  to  concrete 
questions  and  to  actual  legal  systems  so  as  to 
yield  results  both  subjectively  just  and  object- 
ively valid.  The  Neo-Hegelians  have  declared 
that  the  task  of  the  jurist  is  to  find  the  jural 
postulates  of  the  culture  of  a people  for  the 
time  being  and  to  shape  the  laws  thereto. 


ii 


Everywhere  on  the  continent,  if  one  may  rely 
on  the  reviews,  the  tendency  is  to  favor  once 
more  that  insistency  upon  ideals  which  were 
the  glory  and  the  vital  spark  of  jurisprudence 
before  the  rise  of  the  historical  school.  And 
this  spirit,  which  is  moving  in  the  broader 
field  of  jurisprudence,  should  surely  enable  us 
to  view  idealistic  attempts  in  the  international 
field  with  complacency,  if  not  with  hope. 

Thus  everywhere  the  spirit  of  the  time  in 
jurisprudence  gives  us  faith  in  the  efficacy  of 
effort.  The  time  has  gone  by  when  the  forces 
of  juristic  reaction  may  be  rallied  about  the 
standards  of  nineteenth  century  historical 
jurisprudence.  Indeed,  no  one  has  complained 
more  bitterly  of  the  failure  of  courts  and  law- 
yers to  move  with  the  “spirit  of  the  times” 
than  the  very  progressive  who  now  refuses  to 
believe  that  international  law  can  march  or 
that  it  can  cope  with  the  definite  ideals  of  this 
arbitration  treaty.  His  attitude  towards  the 
development  of  international  law  as  a remedy 
for  war  is  precisely  that  which  our  much  be- 
rated legal  profession  has  taken  towards  the 
development  of  private  law.  The  confident 
non  possumus  and  aggressive  laissez  faire  of 


12 


the  late  Mr.  Carter  when  writing  upon  legisla- 
tion finds  a perfect  parallel  in  much  that  is 
written  upon  the  inherently  non-justiciable  in 
international  disputes. 

The  philosophical  phase  of  the  argument  for 
the  absolutely  non-justiciable,  when  closely 
examined,  is  equally  curious  and  untenable. 
One  of  its  cardinal  assumptions  is  the  suprem- 
acy of  the  national  will.  In  the  last  analysis 
this  is  merely  an  application  to  international 
law  of  the  “individual  will”  theory  long  domi- 
nant in  private  law,  and  long  since  abandoned 
by  jurists.  Grotius  conceived  of  nations  as 
each  equal  and  sovereign  in  theory,  just  as 
Bentham  conceived  of  individuals.  Grotius 
abandoned  all  conceptions  of  world  empire 
and  a world  church,  dominus  totius  mundi,  in 
favor  of  this  doctrine  of  equality  and  inde- 
pendence; an  idea,  one  is  almost  tempted  to 
say  a fallacy,  which  persists  to  help  confound 
all  forward  movements.  Certainly,  in  this  era 
of  universality  and  of  a world  community  it 
is  not  too  much  to  suggest  that  extreme 
national  individualism  is  as  obsolete  as  is  ex- 
treme individualism  in  private  law  or  within 
the  state.  Yet  none  proclaim  the  former  so 


13 


vociferously  as  some  who  inveigh  most  vigor- 
ously against  courts  and  judges  and  legal  sys- 
tems for  being  still  influenced  by  the  latter. 
This  solicitation  for  the  national  will  is  ex- 
actly the  same  thing  as  the  solicitude  of  the 
metaphysical  jurists  of  the  last  century  for  the 
individual  will.  If  socially  the  collectivist 
ideal  is  to  prevail  and  we  are  to  be  asked,  for 
the  sake  of  social  justice,  to  abandon  our  old 
conceptions  of  individual  freedom  of  contract 
and  the  like — if  we  are  to  regulate  our  indi- 
vidual rights  and  obligations,  within  the  state, 
on  the  theory  that  the  interests  of  the  indi- 
vidual are  to  be  secured  through  society  and 
that  there  are  social  interests  to  be  secured 
by  the  ordinary  private  law — then  it  is  diffi- 
cult to  see  why  the  same  reasoning  should  not 
apply  as  between  individual  nations  and  the 
society  of  nations,  even  if  we  are  not  yet 
ready  to  concede  a citizenship  of  the  world. 

Perhaps  we  shall  be  able  to  reach  a better  con- 
clusion as  to  the  non- justiciable  in  disputes  be- 
tween nations  if  we  consider  for  a moment  some 
of  the  limitations  of  effective  adjudication  of  pri- 
vate disputes. 


14 


The  text  books  tell  us  that  in  ancient  law  in- 
jured persons  had  three  means  of  redress ; self- 
help;  appeal  to  the  gods  (or  their  ministers), 
and  appeal  to  the  state.  The  break-down  of 
universal  religious  organization  and  conse- 
quent failure  of  excommunication  and  of  the 
interdict  as  effective  sanctions  have  made  ap- 
peal to  spiritual  organizations  ineffectual. 
There  is  no  state  to  which  an  injured  nation 
may  appeal.  Consequently,  we  have  accus- 
tomed ourselves  to  think  that  modes  of  com- 
promise such  as  mediation  and  arbitration  and 
regulated  self-help  were  the  sole  subject  mat- 
ter of  adjective  international  law.  But  this 
mode  of  looking  at  ancient  law  is  superficial. 
It  also  proceeds  from  the  ultra  individualist 
standpoint,  considering  only  the  injured  indi- 
vidual and  treating  the  whole  legal  system  as 
revolving  about  him.  All  the  more  recent  and 
thorough  scholarship  on  the  history  and  de- 
velopment of  private  law  seems  to  be  agreed 
that  not  the  right  of  the  individual,  but  the  in- 
terests of  the  social  body  in  preventing  private 
war  and  in  preserving  peace  and  public  order, 
was  the  real  force  in  the  development  of  judi- 
cial systems  and  in  the  resulting  development 


15 


of  law.  Our  ideas  of  legal  history  are  still 
colored  by  the  doctrines  of  the  state  of  nature 
and  natural  rights  which  has  led  historians 
subconsciously  to  approach  and  expound  the 
whole  subject  from  the  injured  individual  as  a 
starting  point.  The  evidence  now  points  the 
other  way.  The  individual  never  played  the 
important  part  in  our  social  or  legal  develop- 
ment that  much  of  our  legal  theory  concedes 
to  him.  Much  of  the  larger  history  of  the  de- 
velopment of  judicial  settlement  of  private  dis- 
putes must  be  re-written  from  the  social  stand- 
point. Nor  is  this  peculiar  to  jurisprudence. 
The  same  is  true  in  the  broader  fields  of  his- 
tory and  economics.  In  the  development  of 
law  within  the  state  we  may  assume  that  the 
social  interest  in  peace  and  public  order  was 
the  prime  consideration  and  was  secured,  first, 
by  some  social  regulation  of  self-help  and  of 
private  war,  and  then,  more  and  more,  by 
providing  means  for  the  just  determination  of 
disputes  and  the  orderly  and  impartial  ascer- 
tainment of  rights  and  redress  of  wrongs. 
Consequently  the  state  grew  in  strength  with 
the  growth  of  law.  Effective  adjudication  of 
private  disputes,  as  a means  of  securing  the 


16 


social  interest  in  public  order  and  the  public 
weal,  was  therefore  rendered  possible  even 
with  feebly  developed  states. 

Is  it  far  fetched  to  apply  this  analogy  to  the 
field  of  international  law  in  connection  with 
the  question  of  the  treaties?  What  we  need 
is  not  a world  state  but  a better  organized 
society  of  states,  with  social  interests  to  be 
secured  and  maintained.  The  orderly  and 
effective  adjudication  of  all  disputes  is  bound 
to  become,  possible.  Nor  is  this  a remote  pos- 
sibility. That  there  is  a world-wide  social  in- 
terest in  peace  is  not  merely  indisputable 
a priori,  but  is  proving  itself  empirically  in  the 
growing  demand  for  peaceable  adjustment  of 
international  differences  and  the  world-wide 
movement  against  the  present  expensive  and 
ruinous  regime  of  peace  vi  et  armis.  We  have, 
then,  this  increasing  world-wide  society,  evi- 
dences of  which  can  be  drawn  from  all  depart- 
ments of  human  endeavor.  We  have  world- 
wide social  interests  to  be  secured.  And  the 
means  of  securing  these  interests  can  not  but 
be  the  same  as  those  by  which  the  social  in- 
terests of  smaller  groups  were  secured  against 
private  war — that  is,  by  providing  means  for 


1 7 


the  just  determination  of  controversies  and 
the  impartial  ascertainment  of  rights  and 
duties.  Undoubtedly  such  determination  and 
ascertainment  must  commend  themselves  to 
the  moral  sense  of  the  world.  But  so  it  is 
with  private  adjudications.  They  rest  upon 
sanction  and  upon  traditional  habits  of  obedi- 
ence; but  they  rest  also  upon  conformity  to 
the  moral  judgment  of  the  community,  with- 
out which  sanction  would  soon  break  down 
and  tradition  be  rejected.  For  a long  time  in 
the  history  of  law,  adjudications  had  behind 
them  only  the  social  interest  in  security  and 
order  and  the  moral  sentiment  of  a community 
which  approved  the  result.  We  have  good 
ground  for  faith  that  international  adjudica- 
tions may  be  sustained  to  a large  extent  upon 
the  same  basis. 

The  world-wide  interest  in  these  proposed 
treaties  is  itself  an  evidence  of  this  awakening 
moral  sense,  and  the  chief  merit  and  justifica- 
tion of  the  entire  peace  propaganda  is  that  by 
turning  the  thought  of  the  world  from  war  to 
peace  it  creates  the  very  medium  in  which 
law  can  thrive  and  from  which  all  laws  have 
in  the  development  of  civilization  derived 


18 


their  real  sanctions.  One  need  not  accept  Mr. 
Bergson’s  clever  notion  of  “creative  evolu- 
tion” to  realize  that  even  in  law  as  in  life 
there  is  a force  which  somehow  does  in  due 
time  tend  to  translate  “the  vague  vision”  into 
the  enduring  reality.  The  mere  fact  that  good 
men  dream  of  peace  and  wise  men  preach 
peace  and  that  the  thought  of  the  world  is 
turning  from  war  to  peace  should  in  time 
make  war  as  much  of  an  anomaly  in  fact  as 
it  now  is  in  principle.  The  whole  field  of  law 
and  politics  and  social  polity  is  filled  with  illus- 
trations of  this  transmutation  of  the  visional 
into  the  actual.  “Without  Goethe,  no  Bis- 
marck,” says  some  one;  and  no  better  ex- 
ample could  be  cited  of  this  law  of  growth 
than  the  creative  relations  between  the  mod- 
ern political  and  industrial  Germany  and  the 
purely  philosophical  Germany  of  Kant  and 
Fichte  and  Schelling  and  Hegel.  What  last 
century  appeared  to  be  the  mere  vision  and 
pastime  of  her  intellectuals  now  appears  to 
be  the  vital  spark  or  moving  spirit  of  her 
social,  industrial  and  political  life;  so  much  so 
indeed  that  we  have  as  shrewd  a critic  as  Lord 
Haldane  connecting  the  new  Germany,  not- 


19 


withstanding  its  militarism  and  its  bitter 
struggle  for  commercial  leadership,  with  the 
intellectual  Germany  of  Kant  and  seeing  in  it 
a prophecy  of  peace  to  all  mankind. 

If  we  are  right  in  believing  that  adjective 
international  law  has  for  its  subject  matter 
regulated  self-help  and  provision  for  a system 
of  international  justice  which  will  reduce  self- 
help  to  the  inevitable  minimum,  we  should  be 
justified  in  looking  to  self-help  and  the  admin- 
istration of  justice  as  they  developed  and  now 
exist  in  private  law  in  order  to  learn  the 
limitations  upon  these  modes  of  redressing 
injuries  and  securing  the  social  interest  in 
peace  and  public  order,  and  thus  to  learn 
something  of  the  limitations  which  are  likely 
to  inhere  in  analogous  institutions  in  inter- 
national law.  The  Romans  permitted  self-de- 
fense, but  did  not  allow  self-redress;  that  is, 
they  permitted  no  enforcement  of  private 
claims,  or  any  redress  of  any  infractions  of 
one’s  rights,  by  force.  They  allowed  self- 
redress in  but  two  cases,  namely,  necessity — i. 
e.,  where  irreparable  injury  would  result  if  it 
were  not  allowed — and  where  it  was  provided 
for  by  contract.  In  the  Anglo-American  law 


20 


we  recognize  self-help  in  the  case  of  self-de- 
fense of  the  person  and  of  the  several  personal 
relations  of  parent  and  child,  husband  and 
wife,  and  master  and  servant;  also  in  the  case 
of  recaption  of  chattels  forcibly  taken  from 
one’s  possession,  where  the  recaption  does  not 
involve  a breach  of  the  peace;  also  in  the 
abatement  of  nuisances;  and  to  a degree  in 
distress  for  rent.  Self-defense,  therefore,  is 
recognized  in  all  legal  systems,  but  self-re- 
dress is  confined  to  narrow  limits.  Honor  and 
vital  interests  can  hardly  be  said  to  be  of  con- 
sequence in  either. 

On  the  other  hand  there  are  in  private  law 
certain  well-defined  limitations  to  the  judicial 
adjustment  of  controversies  or  the  judicial  se- 
curing of  interests.  There  are  really  only 
three  such  practical  limitations:  (i)  some 
things  are  too  trivial  for  judicial  cognizance ; (2) 
some  things  are  too  great  for  judicial  cognizance; 
and  (3)  some  things  are  too  intangible  for  judicial 
cognizance.  Private  law  does  not  in  theory 
admit  the  second  limitation,  but  in  practice  we 
must  admit  it  to  some  extent.  Great  moral 
questions  sometimes  so  stir  the  public  that 
submission  to  judicial  decision  is  impatiently 


21 


rejected.  A number  of  instances  in  recent 
history  might  be  cited  where  the  public  would 
not  brook  legal  decisions  on  certain  questions. 
The  pressure  which  the  judicial  power  over 
unconstitutional  legislation  now  brings  to  bear 
upon  courts  indicates  that  political  questions 
may  arise  which  will  be  too  great  for  judicial 
cognizance.  Or  compare,  for  example,  the 
“unwritten  law” — the  sentiment  of  some  com- 
munities as  to  cases  of  assault  upon  women. 

But  it  must  be  noted  that  these  cases  are 
exceptional.  There  is  no  class  of  absolutely 
non-justiciable  private  controversies  defined 
by  the  magnitude  of  the  issues  involved.  The 
law  has  done  wisely  in  not  recognizing  any 
such  exceptions  and  its  struggle  to  deal  with 
even  the  highest  interests,  as  well  as  it  can, 
has  been  amply  justified  by  legal  history.  So 
far  as  it  has  failed  in  dealing  with  questions 
too  intangible  for  judicial  cognizance,  it  has 
been  due  to  attempts  to  make  law  cover  the 
whole  field  of  morals  and  ethics — to  deal  with 
being  as  well  as  acting.  Cases  like  the  failure 
of  the  Roman  law-giver  to  make  a legal  duty 
out  of  gratitude  in  an  age  of  decadent  morals, 
or  the  failure  of  the  English  chancellor,  after 


22 


the  law  of  the  church  had  lost  its  authority, 
to  hold  trustees  to  an  ethical  maximum — not 
to  draw  examples  from  the  present — might  be 
cited  to  show  that  law  is  not  the  science  of 
justice  in  general,  but  of  justice  applied  to  the 
relations  of  men  and  of  states,  so  far  as  it  is 
practicable  to  make  them  the  subject  of  judi- 
cial cognizance. 

Now,  analogy  between  private  law  and  in- 
ternational law  seems  in  practice  to  be  com- 
plete in  all  respects,  except  that  the  latter,  un- 
like the  former,  persists  in  regarding  some 
subjects  as  too  great  for  judicial  cognizance. 
Self-help  short  of  war  is  in  international  law 
of  two  sorts:  (i)  a self-redress  analogous  to 
that  universally  permitted  in  private  law,  e. 
g.,  seizure  of  the  thing  in  dispute;  (2)  means 
of  bringing  pressure  upon  an  adversary  to  in- 
duce him  to  do  justice,  e.  g.,  reprisals,  pacific 
blockade,  embargo,  etc.  The  analogy  of  pri- 
vate law  must  convince  us,  as  we  should  hold 
in  any  case  a priori,  that  self-defense  and  self- 
redress of  the  first  type  cannot  be  obviated. 
Our  chief  trouble  lies  in  the  second  of  the  lim- 
itations noted  in  private  law — “subjects  too 
great  for  judicial  cognizance.”  No  one  as  yet 


23 


seeks  to  press  upon  international  tribunals 
matters  too  trivial  or  too  intangible  for  ad- 
judication. The  fear  is  that  matters  too 
great  for  adjudication  will  be  dealt  with 
by  such  tribunals.  But  does  not  the  anal- 
ogy of  private  law  teach  us  that  this  will 
take  care  of  itself?  Why  attempt  to  de- 
fine these  exceptional  cases  legally  and  refuse 
to  go  forward  until  they  are  exactly  and  suit- 
ably defined?  Private  law  does  nothing  of 
the  kind.  Really,  absence  of  sanction  here  is 
an  advantage.  It  removes  the  element  of 
danger.  International  law  cannot  be  used  to 
oppress  great  states  as  private  law  may  be 
used  to  oppress  humble  citizens.  International 
tribunals  have  not  made  sufficient  progress  to 
require  us  to  begin  the  framing  of  a bill  of 
rights,  a declaration  of  the  rights  of  states. 

If,  then,  even  though  we  may  be  disposed  to 
doubt  whether  adjudications  of  international 
disputes  will  prove  a sovereign  specific  for 
war;  even  if  we  suspect  that  the  struggle  of 
races  for  hegemony  will  in  the  end  be  deter- 
mined by  the  sword;  or  if  we  fear  that  out- 
bursts of  passion  will  at  times  sweep  peoples 
into  battle  before  reason  can  intervene,  we 


24 


have  equal  reason  to  be  skeptical  as  to  the  dire 
results  that  are  predicted  of  the  attempt  to 
secure  the  widest  possible  adjudication  of  in- 
ternational disputes.  If  the  machinery  stops 
and  fails  to  work  under  circumstances  of  great 
stress,  it  will  only  do  what  we  see  far  too  often 
in  the  workings  of  our  every  day  machinery 
of  private  law.  The  widest  possible  scheme 
can  do  no  more  than  fail  in  some  details.  On 
the  other  hand  undue  limitation  may  impose 
fetters  during  the  formative  period,  the  period 
of  growth,  which  will  leave  permanent  marks, 
shape  the  subject  awry,  and  retard  its  de- 
velopment. Only  by  experience  of  inclusion 
and  exclusion  can  we  determine  what  is  jus- 
ticiable and  what  is  not.  It  is  unhistorical 
and  anti-social  to  insist  upon  exclusion  on  a 
priori  grounds  of  any  subject  matter  which 
may  prove  in  the  event  a proper  one  for  judi- 
cial determination.  Where  would  private  law  be 
if  the  Romans,  for  example,  had  insisted  that 
questions  involving  the  honor  or  the  vital  in- 
terests of  the  free  man  could  not  be  submitted 
to  a Court?  Such  was  a primitive  view,  but 
the  law  at  an  early  stage  compelled  the  free- 
man to  consent  to  adjudication  of  such  mat- 


35 


ters.  It  is  much  better  to  set  up  the  tribunal 
or  agree  to  constitute  it  with  a general  juris- 
diction over  all  questions,  and  let  its  practical 
limits  be  worked  out  as  juristic  and  judicial 
experience  and  the  exigencies  of  actual  con- 
troversies demand,  than  to  go  on  making  rules 
and  defining  exceptions,  and  laying  down  prin- 
ciples in  the  abstract,  and  expect  disputing 
peoples  to  conform  to  them  in  the  heat  of  con- 
troversy. The  whole  lesson  of  legal  history 
is  that  we  must  not  be  over  ambitious  to  de- 
fine and  to  lay  down  rules  and  exceptions  in 
advance.  To  lay  down  in  advance  what  is 
and  what  is  not  justiciable,  with  no  experience 
upon  which  to  go,  is  to  ignore  the  entire  course 
of  judicial  history. 


26 


American  jimririg  for  JnMrial  Settlement 
nf  Slnternatumal  itspntea 

Increase  in  the  membership  of  the  Society 
during  the  past  few  months  has  exhausted  the 
edition  of  the  printed  Proceedings  of  the  “Cin- 
cinnati” Conference,  Nov.  7-8,  1911.  There 
is  still  on  hand  a supply  of  the  Proceedings 
of  the  “Washington”  Conference,  Dec.  15-17, 
1910,  which  volume  has  been  recognized 
abroad  as  a classic  and  a text  book  on  the 
subject  of  an  international  court  of  justice. 

The  collection  of  addresses  in  this  volume 
will  be  found  to  be  of  great  importance.  They 
throw  light  on  present  day  problems  of  an  in- 
ternational character,  containing  most  inter- 
esting historical  reviews  of  certain  aspects  of 
internationalism  and  a profound  study  of  law 
and  courts  which  will  give  the  book  perma- 
nent value. 

The  discussion  centered  largely  upon  the 
proposed  international  court  of  justice,  an  idea 


27 


which  has  been  the  hope  of  leading  thinkers 
of  the  world  for  many  generations  and  which 
it  is  confidently  believed  we  are  on  the  eve  of 
realizing. 

The  discussions  were  participated  in  by 
such  statesmen,  educators  and  men  of  affairs 
as: 


President  Taft 
Hon.  Simeon  E.  Baldwin 
Hon.  Richard  Bartholdt 
Justice  Henry  B.  Brown 
Andrew  Carnegie 
Hon.  Joseph  H.  Choate 
Hon.  Wm.  Bourke  Cockran 
Chas.  W.  Eliot 
Hon.  John  W.  Foster 
Hon.  Wm.  Dudley  Foulke 
The  French  Ambassador 
James  Cardinal  Gibbons 
Edwin  Ginn 

Major-General  Frederick  D. 

Grant,  U.  S.  A. 

Chas.  Noble  Gregory 
Francis  W.  Hirst 
David  Starr  Jordan 
Frederick  N.  Judson 


Harry  Pratt  Judson 
Hon.  Martin  W.  Littleton 
Hon.  Francis  B.  Loomis 
Hon.  Henry  B.  F.  Macfarland 
Frederic  D.  McKenney 
The  Mexican  Ambassador 
Hon.  Andrew  J.  AJontague 
The  Minister  of  the  Netherlands 
Thomas  Nelson  Page 
Jackson  H.  Ralston 
Justice  William  Renwick  Riddell 
Hon.  Elihu  Root 
James  Brown  Scott 
Alpheus  H.  Snow 
Rear-Admiral  Chas.  H.  Stockton 
Hon.  Oscar  S.  Straus 
Eugene  Wambaugh 
Benjamin  Ide  Wheeler 
General  Stewart  L.  Woodford 


They  suggest  in  a comprehensive  way  the 
immeasurable  direct  advantages  which  would 
accrue  from  the  establishment  of  a court,  to- 
gether with  certain  collateral  results  such  as 
the  upbuilding  of  international  law.  Such 
growth  of  law  would  follow  as  a result  of  the 
decisions  of  the  court  and  as  a result  further 
of  the  codification  of  certain  spheres  of  inter- 


28 


national  law  which  would  be  invited  by  the 
very  existence  of  such  a court. 

The  volume  will  be  found  useful  as  a book 
of  reference  for  those  who  have  occasion  to 
treat  this  subject  in  an  essay  or  address  at  any 
time.  It  will  be  found  particularly  valuable 
for  students  of  international  questions. 

Price,  bound  in  paper,  $1.00.  Apply  to 
WILLIAMS  & WILKINS  COMPANY, 

2427  York  Road,  Baltimore,  Md. 


29 


Atttmratt  Snrifty  fur  Suiilrtal  g’rttlrmrnt  nf 
Sntmiatiunal  Siuputru 


©ffitrra 

Honorary  President,  William  Howard  Taft. 
President,  Simeon  E.  Baldwin, 

Hartford,  Conn. 

Vice-President,  Joseph  H.  Choate, 

New  York  City. 

Secretary,  Theodore  Marburg, 

Baltimore,  Md. 

Treasurer,  J.  G.  Schmidlapp, 

Cincinnati,  Ohio. 

Exerulinr  (Committee 

Simeon  E.  Baldwin, 

Joseph  H.  Choate, 

Theodore  Marburg, 

J.  G.  Schmidlapp, 

W.  W.  Willoughby. 

Henry  B.  F.  Macfarland, 

James  Brown  Scott,  ex- President, 

John  Hays  Hammond,  ex-President. 

Life  membership,  $100;  Sustaining  membership,  $10  a year; 
Annual  membership,  $1  a year. 

Remit  to  Treasurer,  J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A. 
Address  inquiries  to  secretary,  Theodore  Marburg,  Baltimore,  U. 
S.  A. 

Additional  copies  of  this  or  other  issues  of  the 
Judicial  Settlement  Quarterly  may  be  obtained  with- 
out charge  from  the  Assistant  Secretary, 

TUNSTALL  SMITH, 

The  Preston,  Baltimore,  U.  S.  A. 


30 


Abuiaanj  QJnuttril 

Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angell,  Michigan. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bartholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 

R.  L.  Borden,  Ottawa,  Ontario. 

Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 
George  E.  Chamberlain,  Oregon. 

Winston  Churchill,  New  Hampshire. 

George  B.  Cutten,  Wolfville,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson,  Washington,  D.  C. 
Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

William  Dudley  Foulke,  Indiana. 

James  Cardinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Iowa. 

Peter  S.  Grosscup,  Illinois. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson,  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox,  Washington,  D.  C. 
Charles  F.  Libby,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton,  Tennessee. 

R.  McBride,  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ont. 

Sidney  E.  Mezes,  Texas. 

S.  C.  Mitchell,  South  Carolina. 

Don  Romulo  S.  Na6n,  Argentine  Republic. 
Francis  G.  Newlands,  Nevada. 

L.  Oppenheim,  Cambridge,  England. 

Thomas  Nelson  Page,  Washington,  D.  C. 
Walter  H.  Page,  New  York. 

W.  Peterson,  Montreal. 

Sir  Thomas  Raleigh,  London,  England. 
Whitelaw  Reid,  London,  England. 

William  Renwick  Riddell,  Toronto,  Ont. 

Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherford,  Edmonton.  Alberta. 

Walter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  Smith,  Ceorgia. 

Bishop  Robert  Strange,  North  Carolina. 

Sir  Charles  Hibbert  Tupper,  Vancouver,  B.  C. 
George  Turner,  Washington. 

Charles  R.  Van  Hise,  Wisconsin. 

Benjamin  Ide  Wheeler,  California. 

William  Allen  White,  Kansas. 

George  G.  Wilson.  Massachusetts. 

Prince  de  Cassano,  Italy. 


Publications  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes — 

1.  The  New  Era  of  International  Courts,  by 
Simeon  E.  Baldwin.  August,  1910. 

2.  The  Necessity  of  a Permanent  Tribunal,  by 
Ernest  Nys.  November,  1910. 

Supplement — The  American  Society  for  Judicial 
Settlement  of  International  Disputes,  by  James 
Brown  Scott.  November,  1910. 

3.  The  Importance  of  Judicial  Settlement,  by 
Elihu  Root.  February,  1911. 

4.  The  Development  of  the  American  Doctrine  of 
Jurisdiction  of  Courts  Over  States,  by  Alpheus  H. 
Snow.  May,  1911. 

5.  An  International  Court  of  Justice  the  Next 
Step,  by  George  Grafton  Wilson.  Salient  Thoughts, 
by  Theodore  Marburg.  August,  1911. 

6.  The  work  of  the  Hague  Court,  by  N.  Politis. 
November,  1911. 

7.  The  Proposed  Arbitration  Treaties  with  Great 
Britain  and  France,  by  William  Howard  Taft. 
February,  1912. 

8.  Non  Justiciable  Disputes  and  the  Peace 
Treaties,  by  Omer  F.  Hershey.  May,  1912. 


